Brown v. Fryer et al

Filing 59

ORDER. Plaintiff's Motion for Privilege Determination 39 is DENIED. Plaintiff's Second Motion to Amend Scheduling Order 40 is GRANTED in part and DENIED in part. The Deadline for Joinder of Parties and Amendment of Pleadings is extended to 4/12/2013. By Magistrate Judge Kathleen M. Tafoya on 3/13/2013.(cmacd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–01740–CMA–KMT

KATIE BROWN,
Plaintiff,
v.
JAMI FRYER,
ROBERT FRYER,
CINCINNATI INSURANCE COMPANY, and
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendants.

ORDER

This matter is before the court on “Plaintiff’s Motion for Privilege Determination” (Doc.
No. 39, filed Jan. 15, 2013 [Mot. Priv. Determination]) and “Plaintiff’s Second Motion to
Amend Scheduling Order” (Doc. No. 40, filed Jan. 15, 2013 [Mot. Am.]). Defendants Jami and
Robert Fryer (“the Fryers”) filed responses to Plaintiff’s Motions on February 5, 2013. (Doc.
No. 47 [Fryer Resp. Mot. Priv. Determination] & Doc. No. 48 [Fryer Resp. Mot. Am.]).
Defendant Cincinnati Insurance Company (“CIC”) filed a response to Plaintiff’s Motion to
Amend the Scheduling Order on February 5, 2013 (Doc. No. 49 [CIC Resp. Mot. Am.]) and an

amended1 response to Plaintiff’s Motion for Privilege Determination on February 6, 2013 (Doc.
No. 50 [CIC Resp. Mot. Priv. Determination]). Plaintiff filed replies to Defendants’ responses
on February 14, 2013. (Doc. Nos. 53–55.) For the following reasons, Plaintiff’s Motion for
Privilege Determination is denied and Plaintiff’s Motion to Amend the Scheduling Order is
granted in part and denied in part.
A.

Motion for Privilege Determination

Plaintiff’s Motion for Privilege Determination seeks to have the court conduct an in
camera review of documents produced by CIC to Plaintiff to determine whether CIC’s
production includes privileged documents. As background, on December 21, 2012, CIC
produced its Fed. R. Civ. P. 26(a)(1) initial disclosures to Plaintiff on a CD, which contained
over 2,400 documents. In the course of reviewing those documents, Plaintiff’s counsel’s
paralegal discovered potentially privileged documents that may have been inadvertently
produced. Without discussing the contents of those documents, Plaintiff’s counsel’s paralegal
notified Plaintiff’s counsel, R. Craig Ewing, of the potential problem and immediately ceased
reviewing the documents. On January 4, 2013, Mr. Ewing notified CIC’s counsel, Wendelyn
Walberg, and Defendants Jami and Robert Fryer’s counsel, James Powers, that the potentially
privileged documents had been disclosed and asked for a new disk that did not contain any
potentially privileged documents.

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CIC’s original response was filed on February 5, 2013. (Doc. No. 46.)
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CIC’s counsel sent a new CD on January 10, 2013. However, during a January 11, 2013
telephone call, Mr. Powers informed Mr. Ewing that he believes the new CD still contains
privileged documents. In light of the conflicting opinions between Ms. Walberg and Mr. Powers
as to whether the new CD contains privileged documents, Mr. Ewing did not open the envelope
containing the new CD and mailed it back to Ms. Walberg. In support of that decision, Mr.
Ewing points to Colorado Bar Association Ethics Committee Formal Opinion 108, which
outlines the duties of a lawyer when he or she receives from an adverse party or an adverse
party’s lawyer, documents that are privileged and were inadvertently disclosed.2 As such,
Plaintiff now seeks to have the court conduct an in camera review of the CD returned to CIC’s
counsel to determine whether the documents in question are or are not privileged.

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Formal Opinion 108 provides, in pertinent part:

In the situation where a party or a sending lawyer inadvertently discloses to
an adverse party or an adverse party’s lawyer documents that on their face
appear to be privileged or confidential, the Committee concludes that the
receiving lawyer, upon recognizing their privileged or confidential nature, has
an ethical duty to notify the sending lawyer that he or she has the documents.
Although the only ethical obligation of the receiving lawyer in this situation is
to give notice, other considerations also come into play, including professionalism
and the applicable substantive and procedural law. Once the receiving lawyer
has notified the sending lawyer, the lawyers may, as a matter of professionalism,
discuss whether waiver of privilege or confidentiality has occurred. In some
instances, the lawyers may be able to agree on how to handle the matter.
If this is not possible, then the sending lawyer or the receiving lawyer may
seek a determination from a court or other tribunal as to the proper disposition
of the documents, based on the substantive law of waiver.
Colo. Bar Ass’n Ethics Comm., Formal Opinion 108: Inadvertent Disclosure of Privilege or
Confidential Documents, available at http://www.cobar.org/page.cfm/ID/22347.
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Under the circumstances presented, the court declines to conduct an in camera review.
In camera review is appropriate where there is a “‘factual basis adequate to support a good faith
belief by a reasonable person’ that in camera review of the materials may reveal evidence to
establish the claim that the attorney client privilege does not protect all of the documents in the
file.” People v. Madera, 112 P.3d 688, 690 (Colo. 2005) (quoting United States v. Zolin, 491
U.S. 554, 572 (1989)) (emphasis added). Here, Plaintiff seeks in camera review for precisely the
opposite reason—to determine whether the attorney-client privilege does protect documents
contained in the claims file produced by CIC. The attorney-client privilege, however, is
“personal with the client” and therefore may be asserted or waived only by the client. Losavio v.
District Court, 533 P.2d 32, 35 (Colo. 1975). As such, Defendants,3 rather than Plaintiff, are the

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It is unclear to the court whether CIC or the Fryers, or both, may be entitled to assert
that the documents in question are subject to the attorney-client privilege. It appears that the
potentially privileged documents may be communications between Mr. Powers and CIC. More
specifically, after Plaintiff filed a claim with CIC, Mr. Powers was retained by CIC to “assist in
gathering medical records concerning plaintiff’s injuries and to evaluate liability issues and the
nature, extent and value of plaintiff’s injuries.” (Fryers Resp. Mot. Priv. Determination, ¶ 3.) As
a result, CIC’s “claim files contain communications from Mr. Powers addressing and analyzing
those issues.” (Id.)
Nevertheless, it is conceivable that, in the course of conducting his investigation, Mr.
Powers communicated with the Fryers. Under certain circumstances, an insured’s
communications with its insurance company’s investigator may fall within the attorney-client
privilege. See Bellmann v. District Court, 531 P.2d 632 (Colo. 1975); but see Kay Labs., Inc. v.
District Court, 653 P.2d 721, 723 (Colo. 1982) (holding that the attorney-client relationship
between the insurance company must exist at the time the documents are created for the privilege
to apply, and overruling Bellmann to the extent that it suggested otherwise). Ultimately, the
court need not resolve which defendants, if any, are entitled to assert the attorney-client privilege
with respect to the documents in question because neither the Fryers or CIC seek to have the
court conduct an in camera privilege review and neither is requesting claw back of the
documents produced.
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only parties who may assert that the documents in question are privileged. Notably, both the
Fryers and CIC have opposed the request for in camera review of the documents produced by
CIC. As such, because the only parties who may assert the attorney-client privilege have not
requested the court’s intervention, there is no actual controversy for the court to resolve.
Further, in light of the fact that neither the Fryers or CIC seek to have the court conduct
an in camera privilege review of CIC’s initial disclosures, the court finds that the documents
have not been inadvertently disclosed. Thus, it appears to this court that Mr. Ewing has
discharged his ethical obligations under Formal Opinion 108. Altogether, the court sees no
reason to conduct an in camera review of the documents in question and, accordingly, will deny
Plaintiff’s Motion for Privilege Determination.
B.

Motion to Amend the Scheduling Order

Plaintiff seeks to extend (1) the deadline for Plaintiff to designate experts, and (2) the
deadline for joinder of parties and amendment of pleadings, based on Mr. Ewing’s belief that his
ethical obligations prevented him, or Plaintiff’s potential expert(s), from reviewing CIC’s initial
disclosures. As to Plaintiff’s request to extend the deadline for her expert disclosures, it appears
that Plaintiff served her expert disclosures prior to the existing deadline of January 25, 2013.
(Fryer Resp. Mot. Am. ¶ 2; Reply Mot. Am., ¶ 2.) As such, Plaintiff’s request to extend the
expert disclosures deadline is moot. To the extent that Plaintiff seeks to amend the Scheduling
Order to allow her to supplement and/or amend the expert disclosures she filed on January 25,
2013 after her attorney and expert have reviewed CIC’s initial disclosures (Reply Mot. Am. ¶ 7),
the court notes that Fed. R. Civ. P. 26(a)(2)(E) and 26(e) permit, and in fact require, a party to
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supplement their expert disclosures “in a timely manner if the party learns that in some material
respect the disclosure . . . is incomplete or incorrect.” Fed. R. Civ. P. 26(e). Thus, a
modification of the Scheduling Order for this purpose is unnecessary.
The court will grant Plaintiff’s requested extension of the deadline for joinder of parties
and amendment of pleadings. That deadline passed without Plaintiff seeking to amend her
complaint to add a claim for punitive damages primarily because her counsel, Mr. Ewing,
believed his ethical obligations prevented him from reviewing CIC’s initial disclosures. Mr.
Ewing took that position in good faith. As such, the court finds that Plaintiff has demonstrated
good cause for an extension of 30 days from the date of this order for the deadline for joinder of
parties and amendment of pleadings. See also Minter v. Prime Equip. Co., 451 F.3d 1196, 1204
(10th Cir. 2006) (The purpose of Rule 15, which governs amendment of the pleadings, is to
provide litigants “the maximum opportunity for each claim to be decided on its merits rather than
on procedural niceties.”) (citation and internal quotation marks omitted).
Therefore, for the foregoing reasons, it is
ORDERED “Plaintiff’s Motion for Privilege Determination” (Doc. No. 39) is DENIED.
It is further
ORDERED that “Plaintiff’s Second Motion to Amend Scheduling Order” (Doc. No. 40)

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is GRANTED in part and DENIED in part. The Deadline for Joinder of Parties and Amendment
of Pleadings is extended to April 12, 2013.
Dated this 13th day of March, 2013.

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